Wakilii

Muwanga Kivumbi v Attorney General (Constitutional Appeal 6 of 2011)

Supreme Court · [2017] UGSC 4 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court against the Constitutional Court's refusal to award costs to a successful petitioner
Decision
Appeal allowed; appellant awarded costs in the Supreme Court and the Constitutional Court

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Holding

The Supreme Court allowed the appeal on costs. It held that a privately pursued petition is not converted into public interest litigation merely because the court's decision incidentally benefits the wider public, so the appellant's petition was private litigation. There is no absolute rule barring costs in public interest litigation; the section 27(2) Civil Procedure Act principle that costs follow the event applies, though in genuine public interest matters costs should be awarded infrequently and, where awarded, kept nominal. On analysis of the concurring judgments, the Constitutional Court had in fact awarded costs by a 3:2 majority, and its administrative letter stating otherwise was erroneous. The appellant was granted costs in both courts.

Facts

The appellant, a member of the Popular Resistance against Life Presidency (PRALP) caucus, was prevented by the Police from holding rallies and assemblies under section 32 of the Police Act (Cap 303), which empowered the Inspector General of Police to prohibit assemblies likely to cause a breach of the peace. He petitioned the Constitutional Court (Constitutional Petition No. 9 of 2005) and succeeded: the court declared the section an unjustified, prohibitive limitation on the right to assemble. In the lead judgment Byamugisha JCC allowed the petition with costs; Okello and Kitumba JJCC concurred fully, Mpagi-Bahigiene JCC was silent on costs, and Mukasa-Kikonyogo DCJ denied costs because the matter was filed in public interest. After the appellant's counsel sought clarification, the court replied administratively that, the majority having declined costs, the petitioner got none. The appellant, who had not prayed for costs in the petition, appealed against the refusal of costs.

Issues

  1. Whether the matter (a petition challenging the constitutionality of section 32 of the Police Act) was public interest litigation.
  2. Whether costs should never be awarded in public interest litigation cases.
  3. Whether the Constitutional Court in fact awarded costs to the appellant.

Orders

  • Appeal allowed.
  • The appellant be granted costs in the Supreme Court and in the court below.

Key headnotes

Public Interest Litigation — Classification — Private litigation incidentally benefiting the public
A suit instituted by an individual to enforce his own rights does not become public interest litigation merely because the court's decision incidentally benefits the wider public; the salient feature of public interest litigation is that the action is brought for and in the interest of the public rather than for the litigant's own benefit.
Public Interest Litigation — Invocation of Article 137 — Effect on classification
Bringing a petition under Article 137 of the Constitution, as opposed to Article 50, does not in itself translate a complaint into public interest litigation; the character of the suit depends on whether it is brought to vindicate the rights of the public or to enforce the rights of the individual petitioner.
Costs — Public Interest Litigation — No absolute bar
There is no absolute rule that a party who enforces public interest litigation can never recover costs; the principle in section 27(2) of the Civil Procedure Act that costs follow the event applies, but in genuine public interest matters the court should exercise its discretion to award costs only infrequently, and where costs are awarded they should be nominal.
Costs — Discretion — Costs follow the event
The award of costs lies in the discretion of the court, which must be exercised judicially, and the general rule is that costs follow the event so that a successful party is normally awarded costs unless there is good reason to order otherwise.
Costs — Panel decision — Determination by majority and proper adjudication
Where a matter is heard by a panel bench, the view of the majority on costs constitutes the decision of the court; the award of costs is a legal matter requiring adjudication in formal court proceedings and cannot be determined administratively, such as by a letter to a party.

Legislation cited (10)

  • Police Act (Cap 303) s.32
  • Civil Procedure Act s.27(2)
  • Constitution of Uganda art.50
  • Constitution of Uganda art.137
  • Constitution of Uganda art.137(3)
  • Constitution of Uganda art.26
  • Constitution of Uganda art.20
  • Constitution of Uganda art.21
  • Constitution of Uganda art.29
  • Constitution of Uganda art.43

Cases cited (8)

  • Advocates for Natural Resources Governance and Development and 2 Ors v Attorney General (Constitutional Petition No. 40 of 2013)
  • Rtd. Col. Kizza Besigye v Yoweri Museveni and the Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Prince J. Mpuga Rukidi v Prince Solomon Iguru and Ors (Constitutional Appeal No. 18 of 1994)
  • Attorney General v Major Gen. David Tinyefuza (Constitutional Application No. 1 of 1997)
  • Wambugu v Public Service Commission [1972] E.A. 296
  • S.P. Gupta v Union of India AIR 1982 SC 149
  • People's Union for Democratic Rights v Union of India (1983) 1 SCR 456
  • Oshlack v Richmond River Council (1998) 193 CLR 72
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.